Can State Take DNA Prior to Conviction? 9th Cir. Says Yes

The U.S. Court of Appeals for the Ninth Circuit on Thursday upheld a California law requiring law enforcement officers to take DNA samples from people arrested for serious crimes.

The state passed a law in 1998 requiring the taking of DNA samples from people convicted of certain crimes; in 2004, California expanded the testing to include “any adult person arrested or charged with any felony offense.”

Elizabeth Aida Haskell, Reginald Ento, Jeffrey Patrick Lyons, Jr. and Aakash Desai, all of whom were arrested for felonies but never convicted, filed a lawsuit in 2009 challenging the law as unconstitutional. The lawsuit said the 2004 amendment violates their Fourth Amendment right to be free of unreasonable searches and seizures.

In an opinion by Judge Milan D. Smith Jr., the majority held the benefits of DNA sampling — California law enforcers have identified more than 10,000 offenders by using their DNA, the court noted — far outweigh the privacy concerns it raises. Smith wrote,

Law enforcement officers analyze only enough DNA information to identify the individual, making DNA collection substantially similar to fingerprinting, which law enforcement officials have used for decades to identify arrestees, without serious constitutional objection.

Moreover, state and federal statutes impose significant criminal and civil penalties on persons who misuse DNA information. On the other side of the balance, DNA analysis is an extraordinarily effective tool for law enforcement officials to identify arrestees, solve past crimes, and exonerate innocent suspects. After weighing these factors, we conclude that the Government’s compelling interests far outweigh arrestees’ privacy concerns. Thus, we hold that the 2004 Amendment does not violate the Fourth Amendment.

He was joined by Senior U.S. District Judge James Dale Todd, on loan to the Ninth Circuit from the Western District of Tennessee.

Judge William Fletcher dissented, finding that the law violated the Fourth Amendment.

My reasoning is straightforward. Fingerprints may be taken from an arrestee in order to identify him — that is, to determine whether he is who he claims to be. But fingerprints may not be taken from an arrestee solely for an investigative purpose, absent a warrant or reasonable suspicion that the fingerprints would help solve the crime for which he was taken into custody.

The ruling Thursday puts the Ninth Circuit in line with the U.S. Court of Appeals for the Third Circuit, which ruled last July that it is constitutional to collect DNA from arrestees. The lawyers on the losing side have asked the Supreme Court to take up the case.

Michael T. Risher of the American Civil Liberties Union, who represented the plaintiffs in the Ninth Circuit case, said he and his clients hadn’t decided whether to appeal for a rehearing with the Ninth or to petition the Supreme Court to hear the case.

“All of the DNA tests we have here involve people who have been merely arrested. They are presumed innocent. They certainly shouldn’t be in a criminal database,” Risher said.

The Ninth Circuit could be inclined to rehear the case en banc, meaning a panel of 11 judges would review the case instead of just three.

A three-judge panel of the Ninth Circuit previously approved a requirement that people who are arrested submit to DNA testing before they are released on bail. In September, the court was on the verge of rehearing that case en banc, when the criminal defendant challenging the sampling requirement pleaded guilty, rendering it moot.

For a longer look at the issues raised, click here for a WSJ story from last August.

This post was updated with comments from Risher. The California Attorney General’s Office, which defended the law, did not immediately respond to calls for comment.

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